In this case, the jury awarded the plaintiff $750,000 for her medical expenses
and pain and suffering. $360,000 of the award was for future medical expenses.

As a rule, the only medical expenses that are recoverable are those “reasonably
certain” to be incurred in the future. There must be an evidentiary
basis upon which the jury with reasonable certainty can determine the
amount of those expenses. Evidence that certain treatments “might
possibly” be obtained in the future, does not merit an award of
future medical expenses.

At the trial, one of the plaintiff’s treating physicians opined that
the plaintiff would incur up to $2,000 in future medical expenses per
year, and recommended she undergo shoulder surgery that would cost between
$40,000 and $50,000. However, no testimony about life expectancy was presented
to the jury.

Due to the lack of that evidence, in addition to the fact that the amount
awarded for future medical expenses far exceeded what the evidence supported,
the court granted remittitur, and remanded for a new trial solely on the
issue of the life expectancy relating to the $2,000 per year and the amount
of the shoulder surgery.

JUDGE WHO ENGAGED IN EX PARTE COMMUNICATIONS WITH OPPOSING PARTY BEFORE
ENTERING FINAL JUDGMENT, SUFFICIENT TO DEMONSTRATE THAT A REASONABLY PRUDENT
PERSON WOULD BE IN FEAR OF NOT RECEIVING A FAIR AND IMPARTIAL HEARING,
THEREBY JUSTIFYING DISQUALIFICATION.

The petitioner’s motion alleged that the trial judge engaged in
ex parte communications with the respondent on several occasions before entering
a final judgment that was nearly identical to her proposed final judgment,
and included an award of attorney’s fees.

The court held that was sufficient on its face to demonstrate that a reasonably
prudent person would be in fear of not receiving a fair and impartial
hearing, and justified a writ of prohibition to remove the trial judge
from the case.

TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO DISQUALIFY PLAINTIFF’S
COUNSEL DUE TO PRIOR REPRESENTATION OF THE DEFENDANT.

An attorney who had previously worked on certain tobacco-related
Engle litigation in D.C., went to work for a Florida law firm representing a
plaintiff in a tobacco case.

In assessing the prior representation, the appellate court disagreed with
the trial court’s conclusion that the attorney’s work for
Philip Morris was not “substantially related” to the issues
in the plaintiff’s lawsuit. The attorney had had extensive prior
representation of Philip Morris, and even though each tobacco case is
a little bit different, the issues regarding defending and strategizing
those cases are the same.

Because the case arose out of a products liability issue involving an identical
product, and the attorney’s work for the defendant had involved
issues “substantially related” to the issues in the case against
it, the attorney possessed confidential information.

Consequently, the court also disqualified the attorney’s law firm
pursuant to rule 4-1.10(b) which addresses former clients of newly associated
lawyers. Once Philip Morris demonstrated that the attorney had actual
knowledge of material confidential information, the burden shifted to
the plaintiff to prove that the attorney did not actually acquire confidential
information material to the case.

The affidavit did not refute the detailed factual assertions made in the
Philip Morris affidavit, and failed to show that the attorney did not
obtain confidential information material to the claims. Therefore, there
was no competent substantial evidence to support the denial of disqualification
of the firm by application of this bar rule either.

FINAL THOUGHT AS WE CONCLUDE 2016:As we bring another year to a close, we thank all of you who have helped
us to help our mutual clients in their quest for justice. To the many
of you out there who have referred our law firm cases over the years,
we are truly grateful for your faith in us.

On behalf of everyone at Clark, Fountain, La Vista, Prather, Keen &
Littky-Rubin, I want to wish all of you a fun and relaxing holiday season,
and much health, happiness and prosperity in the New Year.

The information on this website is for general information purposes only.
Nothing on this site should be taken as legal advice for any individual
case or situation. This information is not intended to create, and receipt
or viewing does not constitute, an attorney-client relationship.